the cases where the appointment and conditions of service are governed by
statute, the relationship is that of status and not merely a contract. However,
in other cases, it is purely a contract of service resulting in a relationship
of ordinary master and servant. In such cases, where the contract of service is
not governed by statutory provisions, it is well settled that contract of
service cannot be enforced by seeking reinstatement or continuance in
employment since such a relief is barred under the Specific Relief Act. In Executive Committee of U.P. State
Warehousing Corporation v. C.K.
Tyagi, AIR 1970 SC 1244 it was held as under:
“Under the common law the court will not
ordinarily force an employer to retain the services of an employee whom he no
longer wishes to employ. But this rule is subject to certain well recognized exceptions.
It is open to the courts in an appropriate case to declare that a public
servant who is dismissed from service in contravention of Article 311 continues
to remain in service, even though by doing so the State is in effect forced to
continue to employ the servant whom it does not desire to employ. Similarly
under the Industrial Law, jurisdiction of the Labour and Industrial Tribunals
to compel the employer to employ a worker whom he does not desire to employ, is
recognized. The courts are also invested with the power to declare invalid the act
of a statutory body, if by doing the act, the body has acted in breach of a
mandatory obligation imposed by statute.
The position in law is that no
declaration to enforce a contract of personal service will be normally granted.
But there are certain well recognized exceptions to this rule and they are: to
grant such a declaration in appropriate cases regarding (1) a public servant,
who has been dismissed from service in contravention of Article 311 (2)
Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial
Tribunals. (3) A staturoy body when it has acted in breach of a mandatory
obligation, imposed by statute.” Ram Prasad
v. State of U.P., 2019 (135) ALR 1.
of suspension of an employee in service jurisprudence is two fold. The
traditional and dominant purpose of suspension is to aid and assist a
disciplinary enquiry against an employee. Suspension in such cases is not a
punishment. The second known purpose of suspension is to impose it as a
When suspension is made in contemplation
of a disciplinary enquiry, certain prerequisites have to be satisfied. An
enquiry should be contemplated or underway into charges of misconduct. The charges
of misconduct, if proved, should be serious enough to warrant a major penalty.
The order of suspension should be passed
after due and independent application of mind. The suspension should not be
made as a matter of routine resulting from a suspension syndrome.
At the stage of suspension the veracity
of the charges cannot be ascertained and the merits of the defence cannot be
examined. However, the order of suspension should disclose a prima facie act of
Suspension in contemplation of an
enquiry, is made to aid the process of enquiry. Suspension takes out the delinquent
employee from his domain of influence. This ensures that the enquiry is
independent and fair.
Suspension also takes off the charged
employee from his regular duties. This enables the employee to join the enquiry
proceedings and give fulsome cooperation to the enquiry officer. It also gives
him adequate time to prepare his defense. Continuing the employee on regular duties,
with an enquiry on foot, would not be in institutional interests either. The
official work would suffer and the enquiry proceedings would be impeded. The
suspension in such cases is not a punishment. Deepika Shukla v. State Of
U.P., 2018 (6) AWC 6050.
The Hon’ble Apex Court in re: S. Ramachandra Raju v. State of Orissa, 1994 Supp (3) SCC 424, has held that the subjective satisfaction must be based on adverse material of the incumbent. It was held as under:
“In Baikuntha Nath Das v. Chief District Medical Officer, (1992) 2 SCC 299, a bench of three Judges of the Hon’ble Apex Court was to consider whether uncommunicated adverse remarks would be conisered to order compulsory retirement. The Court considering the scope of Fundamental Rule 56(j) on the anvil of administrative law, held that the order of compulsory retirement has to be passed on forming the opinion that it is in the public interest to retire a Government Servant compulsorily though the order is passed on the subjective satisfaction of the Government, the Government or the Review Committee shall have to consider the entire record of service before taking a decision in the matter, of course, attaching more importance to record of and performance during the later years. The record so considered would naturally include the entries in the confidential records, character rolls, both favourable and adverse. The order of compulsory retirement is not liable to be quashed on mere showing that while passing it, uncommunicated adverse remarks were taken into consideration. Further, this does not mean that judicial scrutiny is excluded altogether. Though the court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order if mala fide or passed on no evidence or that is arbitrary, in the sense that no reasonable person would form the requisite opinion or the given material, in short, if it is found to be a perverse order, the remedy under Article 226 is an important safeguard, since the remedy is an effective check against arbitrary, mala fide or perverse actions.” Mukhtar Ahmad v. State of U.P., 2018 (3) ESC 1432.
Interest on delayed payment on retiral dues has been upheld time and again in a catena of decisions. In Shamal Chand Tiwari v. State of U.P.¸(W.P. No. 34804 of 2004) decided on 06.12.2005 it was held: “Now the question comes about entitlement of the petitioner for interest on delayed payment of retiral benefits. Since the date of retirement is known to the respondents well in advance, there is no reason for them not to make arrangement for payment of retiral benefits to the petitioner well in advance so that as soon as the employee retires, his retiral benefits are paid on the date of retirement or within reasonable time thereafter. Inaction and inordinate delay in payment of retiral benefits is nothing but culpable delay warranting liability of interest on such dues. In the case of State of Kerala v. M. Padnaban Nair, 1985 (1) SLR 750, the Hon’ble Supreme Court held as under:
“Since the date of retirement of every Government Servant is very much known in advance we fail to appreciate why the process collecting the requisite information and issuance of these two documents should not be completed at least a week before the date of retirement so that the payment of gratuity amount could be made to the Government Servant on the date he retires or on the following day and pension at the expiry of the following months. The necessity for prompt payment of the retirement dues to a Government Servant immediately after his retirement cannot be overemphasized and it would not be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement.” Dr. Chandrakant Sharma v. Vice Chancellor, 2017 (1) ESC 128.